Jenny L. Workman
jlworkman@gmail.com
Transferring Intent Into Smoker’s
Finally, Plaintiffs Can State a Claim.
ABSTRACT
The “tortious battery” cause of action has been proposed in the past as a means of expressing nonsmokers’ rights to be free from breathing secondhand smoke. While the claim always seemed to make sense in academic literature, it never caught on practically. Courts and scholars alike struggled with the “intent” element of the claim. This paper explains why the “smoker’s battery” tort claim is now ripe for application.
Tortious battery is a cause of action that is defined as the willful touching of a person of another or a successful attempt to commit violence on the person of another. As noted by its definition, it is an intentional tort. In order to be liable for this tort, the defendant must have intended contact.
Tortious battery has already been asserted by non-smokers against smokers who blow smoke directly into the non-smoker’s face. However, the success of a “smoker’s battery” action has stopped there. Tortious battery actions where the smokers did not blow the smoke directly into the non-smoker’s face, but just generally knew that the non-smoker would be inhaling the second hand smoke, have been unsuccessful. In case after case, courts have dismissed smoker’s battery actions for failure to state a claim, reasoning that there is no evidence that the smoker intended his smoke to contact others.
Legal scholars have long pondered whether, and have even advocated that, the smoker’s battery action should extend to cover cases where the smoker generally knew the non-smoker would be inhaling the second hand smoke. However, even these proponents have struggled with the intent element of tortious battery.
In the 1970’s, the smoker’s battery cause of action was first pondered. It was thought that in order to show that the contact was intentional, the nonsmoker had to verbally object to the smoker’s conduct and the smoker had to continue his conduct.
In the 1980’s, academic views on the scope of what constitutes contact in a battery cause of action was growing. “If spitting on someone constitutes sufficient violence to be a battery then…blowing poisonous smoke onto a person…must constitute a battery.” Additionally, studies on the harmful effects of smoking and secondhand smoke began to proliferate, causing several scholars to question how much intent was required – given the proven harmful effects.
By the early 1990’s, the commentary on a smoker’s battery cause of action was growing significantly. It went from being a hypothetical that seemed possible – “surely we could extend battery to cover smoke” – to a cause of action whose success was only a matter of working out the wrinkles. These wrinkles dealt primarily with intent. The new solution to the intent problem was social theory – perhaps because society was now aware of the harmful effects of smoke and secondhand smoke, courts would require less intent in an effort to make communities safer. As one author explained, the law of torts is concerned with conduct not only harmful to precise individuals, but also socially harmful to the community. Thus, because communities at large would be harmed by smoking, the tort law should respond to these social harms.
The most recently theorized solution to the intent problem involves changing the defendant – suing the manufacturer instead of the smoker. Accordingly, because the manufacturer intended to harm the smoker, under the doctrine of transferred intent, one could show that the manufacturer intended to harm passive smokers. The problem with this solution is one of public policy – to hold the manufacturers liable would mean that any manufacturer of a dangerous product could be sued under the doctrine of transferred intent.
This paper addresses the problem that has long plagued the success of the smoker’s battery cause of action – intent. The solution is the doctrine of transferred intent; however, the doctrine as applied to the smoker himself, not the manufacturer. Accordingly, the intent element of the smoker’s battery cause of action can be proved by showing (1) the defendant smoked a cigarette (defendant’s action); (2) the defendant intended or was substantially certain that harmful contact with the defendant’s body would result from carrying out this action; and (3) harmful contact with the plaintiff’s body also resulted from carrying out this action.
While the above intent allegation should be sufficient to state a claim for smoker’s battery, it should be noted that one possibly fatal defense to the smoker’s battery cause of action is consent. Depending on the facts and circumstances surrounding the plaintiff’s contact with the defendant’s secondhand smoke, a smoker’s battery claim may be defeated by the defense of consent. Facts and circumstances likely to be considered are whether the plaintiff objected to the smoker’s conduct, the age of the plaintiff, and the harm suffered by the plaintiff (and any physical manifestations of that harm).
However,
regardless of whether a smoker’s battery cause of action is defeated on the
grounds of consent or any other defense on the merits, the doctrine of
transferred intent is a step in the right direction. By alleging the smoker’s intent as described in
this article, plaintiff’s should be able to finally get past the civil
procedure barrier that has been barring non-smoker’s claims over the past
several decades – failure to state a claim upon which relief can be
granted. Plaintiffs can now state a claim. They can now sufficiently allege intent. They can now argue the merits of their case.
PART I: THE FAILURE OF THE SMOKER’S
INTRODUCTION
My entire life, second-hand cigarette smoke has been my shadow. Wherever I go, it lurks around me – it always seems to be ahead of me and blowing in my direction. In bars and restaurants, it makes my eyes irritable and itchy. It makes my hair stink. It makes my slacks require a trip to the dry cleaners. In my house and around friends and family who smoke, it makes me nauseous and grumpy; I try to breathe less and clenching my teeth, suck in air through my mouth, in an attempt to not smell the smoky air.
I am “ridiculous.” Or so I am told. Perhaps I do overreact when I am around smoke. I throw fits. I act like a child – using my hand to divert the smoke and hiding my nose in my arm in an attempt to breathe cleaner air. Basically, I just make a pest of myself until the person I am around gets so angry with me that he eventually puts out his cigarette.
I hate smoke.
I hate being in a car that smells of smoke; it makes me carsick. It reminds me of being little, when we would do occasional road trips. My sister and I used to sit in the back and pretend we were suffocating – or at least I did; Jill sometimes stopped acting when she saw my mom get bothered by my antics. My dad would laugh. My mom would get agitated, take a few deep puffs, and then put out her cigarette.
I do not know why I hated it back then. I just did. It always bothered me. Maybe I was conditioned to hate it – school taught me from an early age that cigarette smoke was bad, and from an early age, I was on a mission to teach my mom that cigarette smoking was bad. Maybe it always truly bothered me – physically – the smell always hurting my stomach and making me feel sick. Whatever the reason for my hatred of smoke, I was adamant. I would hide my mom’s cigarettes in various places around the house. I would hide her lighters and matches. I would post signs on the refrigerator.
My mom has always smoked. She smoked when she was pregnant with me. She said it was normal then; smoking was not as criticized in society and a lot of pregnant women smoked. I do not know how much I believe her. I do know that times were different back then though – that was twenty-five years ago. She smokes a pack a day.
I have never even had a puff of a cigarette. As I grew older, the smell did more than just aggravate me. It made me sick. I get nauseous and my stomach hurts a lot of times when I am around smoke. I can smell it across rooms – if my mom is in the kitchen smoking, I can tell a room away in the living room. I hated going to bars in college and waking up the next morning with my hair and clothes reeking of cigarette smoke. It would just ruin my day to wake up that way.
When I graduated college, I worked for a few months in marketing before I went to law school. The company I worked for allowed smoking in the workplace; I could not believe it. It was 2002 and there was smoking in the workplace. Before I was hired, I asked about the smoking policy and was assured that I could designate my office “smoke free.” When I started working, I decided to designate my office “no smoking” – big surprise. Unfortunately, being the lowest employee on the totem pole lead my designation to be quite meaningless – those above me had no problem walking into my office while lit up. Furthermore, the hallways were apparently not smoke free – so designating my office anything had little effect when smoking was allowed in the halls. I stuck it out because I knew it would only be a few months.
I came to law school and started dating a smoker for the first time in my life. I always told myself I would never date a smoker. It is different than I imagined though. And surprisingly, it is not bad at all. He does not smoke around me. We do not sit in the smoking sections of restaurants. He does not expect me to go into bars that allow smoking. He even asked for our table to be moved when we were eating outside last summer, next to a table where the people were smoking like fiends. If I pretend to be suffocating or dying from second-hand smoke, when we are walking outside or something of the like, he hardly ever gets angry; he just puts the cigarette out. He respects me. He respects that cigarette smoke hurts me. He knows that cigarettes are harmful to one’s health.
He is what I would like to think of as a new age of smoker – the start of a generation who grew up learning that smoke was bad; who grew up in a world where smoking was criticized more than glamorized; and who grew up respecting the fact that a lot of people are bothered by smoke. This is the “always trying to quit” generation; a group who does not encourage friends and family to “try one” but who does not want anyone close to them to pick up the habit. This is a generation that knows the difference between allowing their harmful activity to hurt themselves and letting that activity hurt those around them.
Because of this,
the “smoker’s battery tort” that has long been speculated by academics is
finally ripe for application. Sure,
people like my mom still do not understand.
But, the majority of the population is changing and we must take
advantage of that change.
A BACKGROUND ON
There is nothing new about a “smoker’s battery” tort claim – legal scholars have long discussed the possibility of such a claim.[1] The claim could be brought by non-smokers against smokers for the battery to non-smokers’ health that smoke causes.[2] The extension of the “tortious battery” cause of action to express non-smokers’ rights always seemed to make sense in academic literature; however, it never caught on practically. This paper will explain why the “smoker’s battery” tort claim is now ripe for application.
However, before one can even begin to understand how a “smoker’s battery” cause of action would work, one must first understand the elements of basic tortious battery. This is because a “smoker’s battery” claim is actually not a new cause of action at all. It is just an old cause of action applied to a new set of facts.
The elements of a “tortious battery” cause of action are:
(1) An intentional touch by the defendant
(2) To the person of the plaintiff
(3) That is harmful or offensive to the plaintiff.[3]
The Restatement (Second) of Torts defines battery in § 18 as offensive contact.[4] Accordingly, the Restatement provision provides:
(1) An actor is subject to liability to another for battery if
a. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
b. An offensive contact with the person of the other directly or indirectly results.
(2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.[5]
The first element of a battery cause of action – intentional touching by the defendant – is broadly construed.[6] It is not necessary that the actual contact be intended by the actor, as long as some contact was intended.[7] Mere accidental touching or touching by inadvertence is insufficient.[8] Thus, the intent element is one of general intent, not specific intent.[9] If the actor intended to touch one person and touches another, that is sufficient.[10] Case law further indicates that one does not even need to possess any actual intent to touch; criminal negligence is sufficient because “[e]very person is presumed to intend the natural and necessary consequences of his acts.”[11]
Pertaining to the
second element needed to prove battery – contact with the plaintiff – it is enough
that the defendant intentionally causes his clothing or anything held or
attached to him to come into contact with the plaintiff.[12] The Restatement’s Comment C gives an example
of the expansive scope of contact with the plaintiff.[13] According to the comment, throwing water upon
someone is sufficient to constitute contact.[14] Firing a gun is battery, as well – even
though the defendant himself does not contact the plaintiff; the defendant
holds the gun, which fires the bullet, which touches the plaintiff.[15] Case law further explains the wide scope of
defendant conduct that may constitute battery.
For example, siccing a dog on another constitutes battery.[16]
Finally, battery
is a cause of action about offense to dignity – therefore, the final element of
a battery cause of action is not about physical harm done to the body, but just
about bodily invasion.[17]
SECOND-HAND SMOKE AND
Smoke is a sufficient
instrument by which to commit a battery.
Smoke can touch the person of the plaintiff and constitute an “offensive
contact.” Furthermore, smoke has been
recognized by the courts as sufficiently “harmful or offensive” to the
plaintiff, thus it satisfies the third element of a battery claim. Smoke has even been held to satisfy the first
element of a claim for tortious battery – “an intentional touch by the
defendant” – even though it is not the defendant actually touching the
plaintiff, but rather the smoke from the cigarette that the smoker is
holding. Therefore, based on precedent,
it is clear that the courts have broadly construed all of these elements such
that contact by second-hand smoke is a battery.
But there is one element that courts have not broadly construed –
intent. Thus, while the “touch by the
defendant” has been stretched to cover cigarette smoke, courts have only held
the touch to be intentional when the smoker intentionally
blows the second-hand smoke at the non-smoker.
For example, in Leichtman v. WLW Jacor Comms., Inc., the Ohio Court of Appeals held a radio talk show host who intentionally blew smoke in the face of one of his guests liable for battery.[25] Leichtman was invited to appear on the radio show on the date of the Great American Smokeout to discuss the harmful effects of smoking and breathing secondary smoke.[26] While in the studio, the host lit a cigar and repeatedly blew it in Leichtman’s face “for the purpose of causing physical discomfort, humiliation and distress.”[27] The court stated that battery occurs when “offensive contact with the person of the other directly or indirectly results [from the intentional act of the defendant],” and offensive contact is “[c]ontact which is offensive to a reasonable sense of personal dignity.”[28] The court defined offensive as “disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness.”[29] Tobacco smoke has the abilities to make offensive contact because it is a particulate matter.[30] Thus, the court held that the host of the radio show intentionally blew second-hand tobacco smoke into the face of Leichtman, resulting in offensive contact of the host with Leichtman, and the host was found liable for battery.[31]
In numerous other cases where the defendant did not blow smoke at the plaintiff but rather just exhaled second-hand cigarette smoke that traveled toward the plaintiff, the smoker’s battery action failed. And time after time, the failure has been attributed to the intent prong – the defendant lacked intent. “[T]he act of smoking generally is not done with the intent of touching others with emitted smoke.”[32] For example, in 1979 in McCracken v. Sloan, the plaintiff worked at a post office and suffered allergies from smoke.[33] Despite the employee making complaints and distributing literature in regard to dangers of smoking, in addition to requesting/being denied sick leave for his allergic condition, and presenting doctors notes in regard to his condition, the defendant nonetheless smoked because there was “no law against smoking.”[34] The court concluded that because it is a crowded world, certain amounts of personal contact (without consent) are inevitable and must be accepted.[35] Smelling smoke from a person smoking in his own office is generally considered innocuous and generally permitted.[36] Citing Prosser on Torts, the court stated that “it may be questioned whether any individual can be permitted, by his own fiat, to erect a glass cage around himself, and to announce that all physical contact with his person is at the expense of liability.”[37] This has become known as the “glass cage defense.”[38] Thus, the court affirmed the dismissal of McCracken’s action for failure to state a claim.[39]
Several decades
later, the courts went beyond merely stating that it is a crowded world and
people have to put up with the activities of others; the courts pinpointed the
intent element of the battery cause of action and based dismissal of smoker’s
battery actions on the lack of intent. In 1997, Pamela S. Pechan filed suit against
her former employer, Dynapro, for battery.[40] Pechan had told her employer several times
that the second-hand smoke caused her to suffer various physical ailments that
require her to seek medical attention, including coughing, sneezing, difficulty
breathing and sleeping, swelling of sinuses, dripping sinuses, swelled face and
eyes, hives, throat irritation and dryness, light-headedness, dizziness, watery
eyes, burning nose, headaches and stress manifested by a spastic colon.[41] However, her employer did nothing to prevent
Pechan’s exposure to smoke in the workplace.[42] The trial court granted Dynapro’s motion to
dismiss, concluding that Pechan failed to state a battery claim for which
relief could be granted because Pechan could not satisfy the intent element.[43] The appellate court affirmed, basing its
decision on intent but paying heed to the earlier McCracken decision.[44] “As of this day and time, smoking remains a
permitted activity in our society, although its glory days are waning. Smoking is a legal activity and not an act of
battery because, generally, smokers do not smoke cigarettes with the intent to
touch nonsmokers with secondhand smoke.”[45]
Four years later,
in 1997, the United States District Court for the District of
As recently as 2003, courts still failed to recognized smoker’s batter claims by non-smokers against smokers for general exposure to secondhand smoke. In Faircloth v. Duke University, the United States District Court for the Middle District of North Carolina held that “it would appear that [this] claim for assault and battery based on smoke exposure has not yet been allowed by the North Carolina courts…[t]his alone is enough to support dismissal.”[50] Thus, it appears now that courts do not even need to consider whether the elements were satisfied on a case by case basis; instead, they feel confident to just dismiss a claim because the claim was never before recognized.
Thus, Leichtman v. WLW Jacor Comms., Inc.
represents the limits of the “smoker’s battery” cause of action. Unless the defendant blew smoke directly into
the face of the plaintiff, a plaintiff cannot recover in battery – or even
successfully state a claim – for the offensive exposure to second-hand
smoke. Why? Because the defendant did not light up a
cigarette with the intent of exposing others to second-hand smoke.
LEGAL SCHOLARS CAST
Legal scholars also seem to steadily acknowledge
that intent is a problem to a “smoker’s battery” cause of action. Even those who are proponents of the cause of
action shrug their shoulders when it comes to intent.
According to David B. Ezra’s 1990 article, Smoker Battery: An Antidote to Second-Hand
Smoke, a “smoker’s battery” cause of action has long been discussed in
academic literature.[51] Looking back through the various scholars and
what they discussed, certain trends as to the intent element of the smoker’s
battery claim become apparent.
The first trend in dealing with the intent element was what will be called “the theory of notice and continued action.” The smoker’s battery action was first proposed in 1976 by Alan S. Kaufman, who wrote a comment that pondered whether such a cause of action was even possible.[52] Kaufman’s article started the ball rolling – the intent element was the weakest element and it appears that immediately scholars started brainstorming ways to show intent. The following year, in 1977, Alvan and Betty Brody published a book that expanded on the idea of a smoker’s battery cause of action – noting that success of the action required the nonsmoker to verbally object to the smoker’s conduct.[53] Only if the nonsmoker verbally objected to the smoker’s conduct did the smoker have notice that the non-smoker found the conduct offensive; thus, notice and continued smoker was required to show that the smoker intended the offensive conduct.[54] In 1980, another commentator noted that the nonsmoker must make the smoker aware of the fact that he is bothered by the smoke, but so long as such awareness was established, the tort should be successful; therefore, intent was the only slightly problematic element of the battery action and even intent should be capable of satisfaction if notice and continued smoking was shown.[55]
The next intent trend will be called the “balancing theory” – accordingly, it appears that as evidence on the gravity of the harms of second-hand smoke became stronger, scholars seemed to suggest that intent could be more easily inferred. Although cigarette smoking is acknowledged as harmful as far back as 1964, it was not until 1984 that more extensive findings were concluded.[56] It is probably as a result of these more extensive findings as to the harm of cigarette smoking, as well as the harm caused by secondhand smoke or “passive smoking,”[57] that this new theory of intent arose. Under this theory, intent and harm appear to be considered inversely proportional – therefore, the more harm that is shown, the less intent that is required to state the required elements of smoker’s battery.[58] In 1998, Professor Larry Kraft asserted that because of new proof regarding the harms of second-hand smoke, exposure to smoke could no longer be considered “innocuous.”[59] As a result, the “torts of assault and battery have great potential as claims for nonsmokers who are subjected to ETS [Environmental Tobacco Smoke] contact.”[60] Thus, Kraft’s comments seem to suggest that the stronger the evidence of harm, the lesser a showing is required of intent.
The 1990’s will be
named the “social theory” of intent.
Under this theory, scholars asserted that because of the harmful effects
of smoking and secondhand smoke, smoking has become less socially acceptable;
as a result, more conflicts are likely to occur between smokers and
non-smokers. Thus, in an effort to avoid
these conflicts, the law should be more lenient on the proof necessary to
establish a battery cause of action – since recognition of these actions will
be for the greater good of society. In
1990, David B. Ezra asserted that “as smoking becomes less popular and less
socially acceptable, the case for permitting civil actions for battery against
those who subject others to tobacco smoke becomes more
compelling…non-smokers…will take steps to stop smokers from forcing tobacco
smoke upon them. Emotional and violent
confrontations are much more likely to occur today than at any time in recent
history.”[61] Ezra’s comment appears to appeal to the
broader social interests – perhaps courts will look past the intent element not
only because second-hand smoke is so
harmful, but also in an effort to prevent violence. Irene Scharf’s 1995 article, “Breathe Deeply:
The Tort of Smokers’
In 1995, Southwestern University Law Review published Darren S. Rimer’s commentary, “Secondhand Smoke Damages: Extending a Cause of Action for Battery Against a Tobacco Manufacturer.”[65] Accordingly, Rimer asserted that a cause of action for smoker’s battery should instead be asserted against tobacco manufacturers.[66] Intent could be asserted against the manufacturer, Rimer stated, through the doctrine of transferred intent – “a nonsmoker can recover for battery based on the manufacturer’s intent to harm the smoker through the doctrine of transferred intent.”[67] Therefore, it appears that Rimer started a new theory – a new theory based on an old legal doctrine – “transferred intent.”
While Rimer’s application of the doctrine of transferred intent may prove extremely successful when a plaintiff takes Rimer’s theory to court, it is possible that there will be a shortcoming – the manufacturer’s actions alone do not constitute battery. The manufacturer is supplying the tools to the smoker so that the smoker can batter himself. This is similar to the analogy from Shaw v. Brown & Williamson Tobacco Corp. concerning gun manufacturers – gun manufacturers are not liable for battery just because they make the tools that others use to commit battery. It takes an intervening act to commit a battery. In the case of guns, it takes someone to pull the trigger. In the case of cigarettes, it takes someone to light up.
Despite this possibly fatal flaw in Rimer’s analysis, the theory of transferred intent is not dead when applied to smoker’s battery claims. It just needs to be applied differently. The smoker intends to harm himself when he lights up. The smoker intends to commit a battery against himself. Thus, when the smoker harms third parties, under the doctrine of transferred intent, the smoker has committed a battery.
PART
II: THE SUCCESS OF THE SMOKER’S
THE DOCTRINE OF TRANSFERRED
INTENT
The doctrine of transferred intent provides that “where an intentional tort, such as battery, is attempted or committed against one person and is, instead of or in addition to being committed against that intended victim, committed against another person, the law will, as to the secondary victim, supply the missing element of intent so that the second victim can hold the attacker liable.”[68] Thus, the doctrine fills in the missing element of the cause of action – intent.[69]
The doctrine makes it easy to impose liability when a defendant intended his conduct to do harm.[70] As long as the defendant intended his conduct, it does not matter whether he intended the contact that actually resulted.[71] Thus, the law distinguishes intentional conduct from negligent conduct.[72] The reason for this distinction is to encourage social order by imposing civil liability on those who disobey the law.[73]
Because of the same social policy
of encouraging obedience, intentional torts also have a lesser burden for
proving causation.[74] This makes it relatively easy to prove an
intentional tort cause of action; so long as one can prove the intent element,
the other elements generally fall into place.
While the doctrine of transferred intent can be applied to all of the five intentional tort causes of action that arose out of trespass (assault, battery, intentional infliction of emotional distress, false imprisonment, and trespass to land), the doctrine is most commonly applied to assault and battery cases.[75] Carnes v. Thompson is an illustration of a typical application of the doctrine of transferred intent in a battery cause of action.[76]
In Carnes, the defendant, Thompson, took a swing at Mr. Carnes, but ended up hitting only Mr. Carnes’s sleeve, and instead, Thompson struck Mrs. Carnes with the brunt of his swing.[77] Because Thompson (1) intended contact (with Mr. Carnes); and (2) did contact (Mrs. Carnes and Mr. Carnes’s sleeve), Thompson was held liable for the battery of both Mr. Carnes and Mrs. Carnes.[78] There are two rationales to explain Thompson’s liability for battery of Mrs. Carnes – both are rationales that, in effect, are the doctrine of transferred intent – (1) where a tort is attempted or committed with malice, the malice, and thus the possible liability, extends to anyone injured and (2) liability for all direct and natural consequences of intentional torts.[79]
STATING A CLAIM WITH TRANSFERRED
INTENT
Applied to the facts of a non-smoker asserting his rights against a smoker, the “smoker’s battery” cause of action could be proven by establishing the following:
(1) Defendant (smoker) intended to contact himself with mainstream smoke – that is filtered by the cigarette filter and defendant’s lungs;[80]
(2) Plaintiff (non-smoker) was contacted by mainstream smoke (as well as by sidestream smoke that comes from burning end of cigarette and is unfiltered);[81]
(3) The plaintiff’s contact with the secondhand smoke was harmful or offensive to the plaintiff.
SHOWING THAT DEFENDANT HAD INTENT TO BATTER HIMSELF
The first step in stating a claim for smoker’s battery under the doctrine of transferred intent is showing that the defendant intended to batter himself. To prove this, the plaintiff must show that the defendant intended offensive contact with himself – in other words, the mainstream smoke to which the defendant exposed his lungs was harmful.
This is relatively easy to establish because although smoke appears “whispy,” it contains particulate matter composed of nicotine, benzo[a]prene, polonium-210 and vaporous substances such as carbon monoxide, ammonia, pyridine, and hydrogen cyanide.[82] Exposure to this particulate matter has been shown to be harmful in countless studies.[83] Exposure to particulate matter has also been recognized as harmful in case law.[84]
Furthermore, it is not necessary that the smoker knew or intended the smoke to hurt himself; as long as there was “substantial certainty” that the intended contact would cause harm, such intended contact is sufficient to constitute battery.[85] The principal case on substantial certainty is Fyffe v Jeno’s, Inc..
In Fyffe, the Ohio Supreme Court reversed findings by the District Court and Court of Appeals that there was insufficient evidence of intent because the employer was or should have been substantially certain that harm would result.[86] According to the facts of the case, an employee stated the following claim against his employer: (1) knowledge by employer of existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be substantially certain; and (3) that the employer, under the circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.[87] The court held that the employer’s substantial certainty that harm to the employee would result was sufficient to satisfy the intent element of the claim.[88]
Courts have
refused in the past to apply the substantial certainty theory of intent to
smoker’s battery causes of action.
However, such refusal is limited to instances where plaintiffs asserted
the theory to support the proposition that the smoker was substantially certain
that the exhaled smoke would contact the nonsmoker. Perhaps such a theory is too attenuated;
perhaps such harm is not substantially certain.[89] Instead, plaintiffs should assert that harm
to the smoker himself was substantially certain. Thus, even if the smoker did not actually
intend to harm himself, such harm was substantially certain to occur – even one
of the Surgeon General’s warnings stated: “Cigarette Smoking Is Dangerous
to Your Health.” It did not state “may
be” or “is substantially like to”; thus, smokers should be more than substantially
certain that harm will result, they should be certain. This sufficiently shows that the smoker intended
to harmfully contact himself.
Of course, it is possible that some critics may find the above application absurd. As David Ezra stated in his article, “Smokers are ‘free’ to harm themselves.”[90] Therefore, because a smoker cannot – legally – be convicted of battering himself, the doctrine of transferred intent should not apply. The case People v. Peters would seem to support this notion.
In People v. Peters, the Illinois Appellate Court affirmed the defendant’s motion to dismiss a charge of reckless conduct under Ill. Rev. Stat. 1987 for failure to state a claim because the state charged the defendant with causing bodily harm to himself.[91] The complaint stated that the defendant “caused bodily harm to himself in that while acting in a reckless manner he discharged a gun striking himself in the chest.”[92] The state pointed to the language of the statute, section 12-5(a), which defines the offense of reckless conduct as follows: “A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.”[93] Thus, the state argued that because the statute says “an individual” and not “another individual,” the cause of action applies to defendants who harm themselves.[94] The court, looking to the objective of the legislature in drafting the statute and the evils that they sought to remedy, determined that “to hold that as the state contends the court should on the term ‘a individual’ would lead to an ‘absurd result.’”[95]
Although the
In a law review article on transferred intent by the Honorable William W. Bedsworth, Judge Bedsworth discusses a situation where a woman poured oil at the top of the stairs so her boyfriend on crutches would fall down the stairs; however, instead the woman herself slipped on the oil, fell down the stairs and knocked herself unconscious.[98] Judge Bedsworth, jokingly, proposes a “miraculous” theory of transferred intent whereby she shows that because she intended to hurt him which would have been a battery, that she hurt herself means she battered herself.[99] Like the state’s theory in People v. Peters, Judge Bedsworth’s “miraculous” theory would lead to an absurd result. Courts – for policy reasons – will not authorize the state to charge people with crimes against themselves.
However, the policy to avoid “absurd results” does not extend to cases where the ultimate result is not charging the defendant with harming himself, but rather, charging the defendant with harming another. Such would be the case in a smoker’s battery claim under the doctrine of transferred intent. Accordingly, while one of the threshold inquiries would be “did the defendant intend to commit battery against himself,” the answer to this inquiry would not result in a claim against the defendant for battery against himself; rather, it would lead to a second inquiry of whether that intent by the defendant to batter himself resulted in offensive contact with a third party. Accordingly, the answer to this second inquiry would result in a claim against the defendant for battery – a battery against a third person, not himself. A battery claim against a third person is not absurd.
In this context,
where the cause of action is merely a stepping stone to the claim the defendant
is actually charged with, causes of action where the defendant intended to harm
himself have been considered meritorious.
The most common example of these cases is attempted suicides where the
defendant – in trying to kill himself – ends up killing a third party.
The Supreme Court of South Carolina stated the above proposition most eloquently in State v. Levelle, a case where a defendant, Napoleon Levelle, was charged with the murder of his wife, Belle.[100] While the issue on appeal was whether malice and intent are one of the same, the prior history acknowledged the principle being discussed herein concerning torts against oneself as a stepping stone to a tort against another under the doctrine of transferred intent.[101] Accordingly, the court stated in its prior history:
[W]hen a man attempts to do an unlawful act, and especially when he uses unlawful means in accomplishing that act, he is responsible in law for the consequences of his own act. By way of illustration: if A intends to shoot B, and draws a pistol and fires upon B, intending to murder him, but misses B and strikes C, though it be his best loved one, then A is guilty in law of the murder of C, if the death was brought about while attempting to commit an unlawful act. In the eye of the law, self-destruction – suicide – is an offence; it is an unlawful act, and if a man with a deadly weapon undertakes to take his own life, he is doing an unlawful act, and if in the commission or attempted commission of that act he takes the life of an innocent party standing by, then, in the eye of the law, that is murder.[102]
Therefore, even though the state would not have prosecuted the defendant for suicide had the defendant succeeded in carrying out his actual intent, the state may nonetheless prosecute the defendant for the action that actually did result – and the state may impute the intent to commit the action that actually did result under the doctrine of transferred intent.
Similarly, courts would not recognize a smoker’s claim for battery against himself – under the theory that when they smoked a cigarette they intended contact with smoke that they knew would result in harm to their health. After all, recognition of such a claim would lead to absurd results. However, the court may nonetheless allow a plaintiff to impute the smoker’s intent to expose his own body to harmful contact with smoke, under the doctrine of transferred intent, to prove a battery claim against a third party.
Of course, some may say that a court allowing this action is just as absurd as the court that recognizes batteries against oneself because the defendant’s action and intent is the same in both; the only difference is the consequence. In the first situation, where a tort would be alleged by the smoker against the smoker, the smoker was just “fortunate” enough to be the only person exposed to his own smoke. In the second situation, the smoker is conducting the same actions – smoking a cigarette – the only difference is that third parties happen to be nearby, who are exposed to the harmful smoke.
The Seventh
Circuit addressed this concern in United States v. Martinez.[103] In